Benignitas

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NEW DAVID-GOLIATH INDEX

(Posted July 15, 2019) I’m a bit overdue in reporting on the justices’ voting patterns in the second quarter of 2019. This feature, which I instituted early last year, collects results from published rulings (opinions and published orders) from the Supreme Court of Virginia, where those appeals have an identifiable Big-Guy-vs.-Little-Guy dynamic. About 15 years ago, each side was winning roughly half of the time on appeal, which is the sort of distribution you’d expect. Trial judges aren’t perfect – a fact for which we appellate lawyers are profoundly grateful – and they’re as likely to err in favor of either side as the other.

But I noticed that the voting started to shift a few years ago, to the point that Goliath was winning far more than was David. I decided to keep track of the results and report them here. In 2016 and 2017, Goliath hit an admirable high-water mark, prevailing in over 80% of those published decisions. Last year, David did a little better, winning 31% of the time and losing 69%. In the first quarter of this year, the DGI was 27/73, meaning that Goliath was still winning far more than losing.

The numbers are in for the second quarter. I had to go back and check again before posting this, because the results surprised me: Goliath had an undefeated quarter, winning all ten decisions in April, May, and June. That raises the year-to-date DGI to 86/14 (18 wins for Goliath to 3 for David). That’s the greatest imbalance I’ve ever seen, though the year obviously isn’t over yet.